Farzana K. v. Indiana Dept. of Educ.

• Decision Date: 04 January 2007
• Docket Number: No. 06-1632.,06-1632.
• Citation: 473 F.3d 703
• Parties: FARZANA K., individually and as next friend of S.K., Plaintiff-Appellant, v. INDIANA DEPARTMENT OF EDUCATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

473 F.3d 703

FARZANA K., individually and as next friend of S.K., Plaintiff-Appellant, v. INDIANA DEPARTMENT OF EDUCATION, et al., Defendants-Appellees.

No. 06-1632.

United States Court of Appeals, Seventh Circuit.

Argued December 8, 2006.

Decided January 4, 2007.

Matthew D. Cohen (argued), Monahan & Cohen, Chicago, IL, for Plaintiff-Appellant.

Frances Barrow, Office of the Attorney General, George T. Patton, Jr., Bose, McKinney & Evens, Indianapolis, IN, Monica J. Conrad, Bose, McKinney & Evans, Chesterton, IN, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and POSNER and RIPPLE, Circuit Judges.

EASTERBROOK, Chief Judge.

Few details of this litigation under the Individuals with Disabilities Education Act matter to this appeal, because the district court did not reach the merits. Instead it dismissed the complaint for want of jurisdiction to the extent that the parent and child seek relief from the school system in West Lake, Indiana. Claims against state officials remain pending, but a partial final judgment under Fed.R.Civ.P. 54(b) has led to this appeal with respect to all other defendants.

S.K. is an autistic teenager. His mother Farzana K. believes that the public schools are not providing an educational program appropriate to S.K.'s needs. In 2004 she sought judicial relief. The district court dismissed her suit in December 2004 after concluding that administrative remedies remained open. The final administrative decision was made on June 6, 2005, and the parties agree that Farzana K. had 30 days to seek judicial review. That period comes from Indiana law. The district court held that 20 U.S.C. § 1415(i)(2)(B), which sets 90 days as the window when a state lacks "an explicit time limitation", does not apply in light of Ind.Code § 4-21.5-5-5, which the judge deemed "explicit" for this purpose. In this court Farzana K. does not contest that ruling; we need not decide whether it is correct.

Farzana K.'s lawyer made the mistake of waiting until late afternoon of the last possible day: July 6, 2005. The Northern District of Indiana accepts electronic filings, and counsel submitted the complaint online. Making a second mistake, counsel used the docket number of the 2004 suit. The computer rejected the filing with the notation that the case had been closed. (This did not, however, prevent the court's computer from forwarding copies to the school system's lawyers.) Farzana K.'s lawyer then dispatched paper copies, but the courier did not reach the courthouse until the clerk's office had closed. On July 8 counsel tendered a new complaint, identical to the one the computer had rejected except that the space for a docket number was blank and the word "amended" had been deleted from in front of "complaint." The district court held that July 8 was too late — that, indeed, counsel's delay had deprived the court of subject-matter jurisdiction. 2005 U.S. Dist. LEXIS 38561 (N.D.Ind. Dec. 20, 2005). The court added that there was a second jurisdictional defect: the complaint had not been verified, as Indiana law requires.

We may assume that Indiana's courts treat both delay and failure to verify as "jurisdictional" failings. Yet whether federal jurisdiction exists is a matter of federal law, and there is no doubt about the source of the district court's power: 28 U.S.C. § 1331, which authorizes federal courts to entertain claims arising under federal law, including the Individuals with Disabilities Education Act. Timely filing may be a condition to success, but it is not a jurisdictional requirement in federal court. See, e.g., Day v. McDonough, ___ U.S. ___, ___, 126 S.Ct. 1675, 1681, 164 L.Ed.2d 376 (2006); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). The law is full of rules that are mandatory in the sense that courts must enforce them punctiliously if a litigant insists. Rules are not jurisdictional, however, no matter how unyielding they may be, unless they set limits on the federal courts' adjudicatory competence. See, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005); Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). Federal courts have been authorized to resolve disputes under the IDEA, so procedural hurdles — whether these concern timely filing or verification — are not "jurisdictional." Waiver and forfeiture therefore are possible, while jurisdictional rules must be enforced even if the litigants are content to relinquish their rights.

"Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit." Fed.R.Civ.P. 11(a). This means federal rule or federal statute, because state requirements for pleading do not apply in federal litigation. Rules established under the Rules Enabling Act supersede state norms. See, e.g., Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980); Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); Hefferman v. Bass, 467 F.3d 596, 599 (7th Cir.2006); AXA Corporate Solutions v. Underwriters Reinsurance Corp., 347 F.3d 272, 277 (7th Cir. 2003). Federal and state tribunals may (and do) use their own rules of procedure. Sometimes it can be hard to determine whether a given norm is procedural or substantive, but when a federal rule covers the subject it must be applied no matter how the issue is characterized; that's the point of Walker and Hanna. No federal rule or statute requires complaints under the IDEA to be verified, and the district court erred in dismissing the complaint for failure to comply with a verification requirement that governs only in state court.

That leaves the 30-day time limit. Plaintiff submits that equitable tolling excuses the delay, but that doctrine deals with situations in which timely filing is not possible despite diligent conduct. See, e.g., Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir.1990). Waiting until the last hours is not diligent; the errors that often accompany hurried action do not enable the bungling lawyer to grant himself extra time. See Johnson v. McBride, 381 F.3d 587 (7th Cir.2004). Nothing prevented plaintiff's lawyer from acting a day or a week earlier, so that counsel could recover from any gaffe. If counsel blundered to his client's prejudice, the remedy is malpractice litigation against the culprit, not the continuation of litigation against an adversary who played no role in the error. See, e.g., Pioneer Investment Services Co. v. Brunswick Associates L.P., 507 U.S. 380, 396-97, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); United States v. 7108 West Grand Avenue, 15 F.3d 632 (7th Cir.1994).

It is hard to see why a court should invoke equitable tolling to supply a litigant with more time to apply for review of an agency's decision. The period for seeking administrative review, like the time for appealing a decision of the district court, usually is brief because a contest is ongoing. The loser simply notifies the other side (by a petition for review or a notice of appeal) that argument will resume in another forum. A lawyer who misses the time to file a notice of appeal cannot invoke "equitable tolling" to justify the delay. Rules may allow judges to grant extra time. See Fed. R.App. P. 4(a)(5), (6). Once the time as extended under the Rules lapses, however, common-law tolling is unavailable; the existence of rules specifying when (and how far) time may be extended is incompatible with an open-ended power to add extra time on "equitable" grounds. Indeed, the Supreme Court has characterized the time limit for appellate review within a unitary system as "jurisdictional," e.g., Browder v. Director of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978), and although Eberhart calls that characterization into question, the Court continues to insist that "mandatory" rules be enforced whether or not they are dubbed "jurisdictional." Allowing more time under the rubric of equitable tolling, when a federal rule covers the subject of extensions, would just contradict the rule — and for no good reason. Once a litigant has received one or more decisions (whether from district courts or hearing officers under the IDEA) after formal adjudication, there is little point in bending the rules to allow another.

Because this 30-day time limit has been borrowed from Indiana law, however, whether it is subject to equitable tolling (and, if so, under what circumstances) is a question of state law. Farzana K. does not cite any Indiana decision holding that the period supplied by Ind.Code § 4-21.5-5-5 may be extended via a tolling doctrine; our own research has not turned up any such holding. Instead Indiana's courts treat this time limit as absolute. See Warram v. Stanton, 415 N.E.2d 114 (Ind.App. 1981). Tolling therefore cannot save this litigation.

So was this complaint filed on time? It was. Counsel transmitted a complaint electronically on July 6, the 30th day after the state agency's decision. Litigation in federal court commences with the filing of the complaint, see Fed.R.Civ.P. 3, and the plaintiff then has 120 days to serve copies on each defendant, see Fed.R.Civ.P. 4(m). All defendants received copies well inside the 120-day window after filing (indeed, all but the state agency received the complaint electronically on July 6).

Defendants insist that this complaint was not "filed" because a computer rejected it. Counsel certainly could and should have avoided this problem by submitting the...